Palo Alto: Fight over Mitchell Park Library project takes legal turn

By Jason Green

Daily News Staff Writer

Posted:
07/26/2014 12:22:10 AM PDT

Updated:
07/26/2014 12:51:19 AM PDT

The fight between the city of Palo Alto and Flintco Pacific Inc. over who is responsible for delays that have dogged the Mitchell Park Library and Community Center rebuild project appears headed for the courtroom.

Flintco filed a lawsuit in Santa Clara County Superior Court on July 17 alleging that the city improperly denied its public records requests for numerous documents related to the project.

According to the 17-page complaint, the general contractor needs the documents in order to "further evaluate and assess the city's decision to terminate its contract" — possibly in preparation for another lawsuit. The city fired Flintco in January following months of finger pointing over problems that have put the project more than two years behind schedule.

"The city's response was a laundry list of boilerplate privileges and exemptions the city apparently relied upon to withhold responsive documents," Flintco attorneys Arthur Woodward and Adrian Webber wrote.

"The city did not specifically identify which privilege or exemption the city believed was applicable to each request, making it impossible for Flintco to determine which privilege or exemption the city was relying upon with respect to each individual request," they continued.

But the city is following through on the public records request, said City Attorney Molly Stump.

"The lawsuit seems totally unnecessary since the city has already produced more than 40,000 pages of documents that Flintco requested, and we're in the process of searching for and compiling even more documents for release," she wrote in an email to The Daily News.

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Stump added that the city has yet to receive a response to its own request for documents from Flintco.

City Manager James Keene said in Jan. 10 letter that faulty work and missed deadlines on the part of Flintco were grounds for termination. Originally scheduled for completion in spring 2012, the 56,000-square-foot library and community center are expected to open by year's end.

"Again, and again, Flintco promised that it would change its approach to this project, and achieve completion," he wrote. Flintco has broken so many promises to get this project finished that it has lost all credibility with the city."

But in a recent letter to Senior Assistant City Attorney Cara Silver, Woodward claimed that the city owes Flintco "millions" in part because it misrepresented the accuracy and completeness of plans and specifications for the project when it released them for bidding in 2010.

"Flintco expects the evidence will show that the city's actions were intended to shift blame for project cost overruns and delays to Flintco while covering up the fact that the plans and specifications were incomplete and inaccurate," he wrote.

According to the letter, the city issued more than 2,000 clarifications of the contract documents and more than 200 architect's supplemental instructions. In response, Flintco submitted nearly 500 change-order requests, or CORs, for more time and money but they were denied by the city.

"Due to the city's improper denial of CORs, Flintco financed a significant portion of the extra work performed on the project in a good faith effort to complete the project," wrote Woodward, adding that the total cost to Flintco and its subcontractors exceeded $10 million more than the approved contract.

Flintco was hired to rebuild the library and community center for $24.4 million but the cost has since climbed to $28 million.

Stump said the city will respond to the claim in mid-August. In the meantime, Big-D Pacific Builders, the general contractor brought in to finish the job, is making good progress.

"Flintco has begun a series of legal maneuvers to try to shift the costs of the problems onto the city, and even get more money out of the city," she said. "We will vigorously oppose these efforts, and in fact it's our position that they owe us. These things will play out in the legal arena over many months, but will not interrupt the completion and opening of the library by the end of this year."